You may want a guardian to be appointed for your family member or loved one who has been experiencing memory loss and/or whose decision-making process has been impaired. It’s difficult to see this happen to someone you love, and you may be struggling with how to find the best way to help them. A declaration of incompetence is required for a guardian to be appointed, and determining if someone is at the point of being incompetent to make their own decisions is a complicated process.
When someone becomes unable to make decisions for themself, the court may appoint a “guardian” or “conservator” to make decisions for this person. A guardian is only appointed if a power of attorney or another less restrictive alternative is not in place or is not working.
The standard for being deemed in need of a guardian varies between states, and depending on the state, the standards for a complete guardianship vs. a conservatorship only over finances may be different. In general, someone is determined to require guardianship when they show a lack of capacity to make responsible decisions or decisions in their best interests.
The court typically considers many factors in determining the need for a guardian or conservator, including:
- One’s comprehension of important medical or financial information
- A person’s understanding of the importance of medical and financial decisions as well as the effect of those decisions
- Someone’s ability to make reasonable decisions using information available to them
- One’s capacity to communicate decisions consistently
- A person’s ability to maintain a safe environment
A loved one can’t be declared incompetent just because they are making decisions that are irresponsible or unwise, but only if it’s determined that they lack the capacity to make sound decisions. If a loved one is simply spending money in a way that seems odd, they may not be declared incompetent in this case. Additionally, a developmental disability or mental illness is not by itself a basis for declaring someone incompetent.
Finally, the standard for if someone is legally incompetent to care for themselves may be different from the standard for having the capacity to make legal decisions. For a legal instrument to be executed properly, the individual signing the document needs to have sufficient mental “capacity” to understand that document’s implications.
For help with your estate planning or elder law needs, contact us at Wilson and Wilson Estate Planning and Elder Law, LLC at 708 482 7090 for our main office in LaGrange, Illinois or at 847 656 8958 for our Northbrook, Illinois office.